Major Gogoi’s Use Of A Human Shield Did Not Violate The Geneva Convention

It doesn’t apply to people who are even “suspected of… activities hostile to the security of the State.”

If the sheer quantum and fanatically negative tenor of op-eds were to be the deciding factors, then the verdict is a slam dunk proposition: Major Nitin Leetul Gogoi stands convicted of the shockingly reprehensible offence of strapping a possible stone pelter to the bonnet of his jeep to ensure safe passage of his men and protectees through a throng of bloodthirsty agitators.

However, when this litany of op-eds (I have not seen so many unfavourable op-eds and scathing editorials published on one topic) is subject to analytical scrutiny, what emerges is an emotionally sensationalised and logically challenged compendium of gibberish: a veritable farrago of political expediency, ideological name calling and plain obstructionism. Officious-sounding legalese and international laws are generously thrown in to impress rather than corroborate specific charges. Therefore, it is imperative that we revisit this incident methodically and impartially, applying standard principles to ascertain its ethical propriety, evaluate its outcome and the long-term impact on the army's best practices.

Did Major Gogoi intentionally target an innocent bystander? The answer is no. Had he pulled out a man sitting quietly in front of his TV at home, his actions would be indefensible...

Before we proceed with this exercise it is important to define ethics and morality and elaborate on the concepts of right and wrong. Ethics is defined as guidelines mandated by institutions or groups to which an individual belongs; for example, physicians are obligated to follow a strict ethical code laid down by medical governing bodies regardless of their personal inclinations.

Morality, on the other hand, refers to the diktats of one's conscience and on occasion may justify supersession of ethical standard. Right and wrong are notions dictated by actions and consequences, as the great philosopher Bertrand Russell (The Elements of Ethics, 1910) avers:

"In judging of conduct we find at the outset two widely divergent methods........ One of these methods, which is that advocated by the utilitarians, judges the rightness of an act by relation to the goodness or badness of its consequences. The other method, advocated by intuitionists, judges by the approval or disapproval of the moral sense or conscience. I believe that it is necessary to combine both theories in order to get a complete account of right and wrong. There is, I think, one sense in which a man does right when he does what will probably have the best consequences, and another in which he does right when he follows the dictates of his conscience, whatever the probable consequences may be."

Confronted with a difficult situation Major Gogoi had a binary choice: order his men to shoot their way out of trouble or be lynched.

The decision to open fire would be an action compatible with the ethics of soldiering: Major Gogoi was tasked to maintain law and order with the aid of firepower if necessary. However, the consequences would be disastrous: many protestors could die. Major Gogoi's morality made him baulk; the tug of humanity was stronger than his call of duty. He demurred.

Yet, on the flip side, inaction would mean dereliction of his duty as a soldier and allowing rampant lawlessness to prevail. Added to this was the immorality of subjecting his valiant jawans to attack. Both action and consequence would fail standard norms.

Faced with this grim lose-lose situation that was likely to result in fatalities, either way, Major Gogoi came up with an innovative, on-the-spot solution that resulted in an incredibly successful outcome— not a single life was lost. Saving human lives is the ultimate test of the validity of any action. By this criterion, Major Gogoi's action conforms to the tenets of philosophy and passes the test of pragmatic reality.

Critiques of Major Gogoi's actions are short on facts and logic; they constitute a bizarre admixture of motivated ideological invectives, baseless angry outbursts and expedient interpretations of laws, national and international.

[I]n the tense, dynamic setting of a violent street agitation, Major Gogoi acted on his best judgement that Dar was one of the stone-pelters... he cannot be faulted for that.

To dismiss endorsements of Major Gogoi's action as "muscular, unquestionable, unaccountable nationalism", as ex-CM of Kashmir, Omar Abdullah puts it, is a cruel and demeaning inference. Rather than being a display of rabid jingoism, this outpouring of support is a morale boosting and heartfelt appreciation of the difficult job that our jawans are called upon to do

Attempts to criminalise Major Gogoi's action by invoking the Constitution and international laws must be exposed for their frailty.

In his op-ed Omar Abdullah angrily asserts:

"... the army resorting to using an Indian citizen as a human shield is a moral and legal question ....... It's a violation of the Geneva Convention, a violation of the Constitution of India and a violation of the military code."

Let us be clear about one thing. This is not a protest intent on civil reform akin to those on the streets of Delhi, Mumbai or Kolkata. This is a violent insurgency with vicious radicals hurling stones to maim and kill, and actively colluding with militants carrying lethal AK 47s—all aimed at undermining our sovereignty at the behest of Pakistan.

These individuals fall beyond the pale of the Constitution and cannot invoke its protective directive; rights are meant for citizens who adhere to the Constitution and use the ballot rather than the bullet to effect change.

"Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not [my emphasis] be entitled to claim such rights and privileges under the present Convention..."

Therefore, the Geneva Convention is not applicable to people who are even suspected reasonably to be stone-pelting separatists.

Whether Farooq Dar was a stone pelter or not is open to question, and an official enquiry is still underway. Did Major Gogoi intentionally target an innocent bystander? The answer is no. Had he pulled out a man sitting quietly in front of his TV at home, his culpability would be clear, his actions indefensible. But in the tense, dynamic setting of a violent street agitation, wherein individuals do not carry identifying labels, Major Gogoi acted on his best judgement that Dar was one of the stone-pelters as he indicates in his press conference: he cannot be faulted for that.

Above all, by indulging in this high profile, no-holds-barred public debate on the professional conduct of active military personnel in a disturbed area, the votaries of this line of thought have demonstrated a lack of responsibility that can have serious repercussions on the morale of our jawans. This is not to say that the army is exempt from scrutiny. The sensitivity of the army makes it imperative to subject infractions by military personnel to a separate and confidential channel of investigation like military courts, a standard practice the world over.